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You are here: BAILII >> Databases >> England and Wales High Court (Technology and Construction Court) Decisions >> IDE Contracting Ltd. v RG Carter Cambridge Ltd [2004] EWHC 36 (TCC) (16 January 2004) URL: https://www.bailii.org/ew/cases/EWHC/TCC/2004/36.html Cite as: 102 Con LR 102, [2004] BLR 172, [2004] EWHC 36 (TCC) |
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QUEENS BENCH DIVISION
TECHNOLOGY AND CONSTRUCTION COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
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Claimant |
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- and - |
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R G ![]() ![]() ![]() ![]() |
Defendant |
____________________
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
R GCambridge
Limited take part in this adjudication in response to this adjudication is expressly subject to this reservation (sic).
The adjudicator was asked to decide that he had no jurisdiction. He considered the points raised and decided that he did have jurisdiction. He gave his reasons in writing for that decision on 30th October. The following day, the defendant, having good reason to believe that Mr. Smalley had not been duly appointed, withdrew from the adjudication.
Any dispute arising for the adjudication's shall be in accordance with the provision of section 108 of the housing grants, construction and regeneration act 1996 and the scheme for constructioncontracts
made thereunder and shall be referred to the following named person:
Stephen Pratt LLB (Hons) MSc FRICS FCIOB ACI Arb: Foundation Court 2Victoria
Square,
Victoria
Street, St Albans Hertfordshire AL1 3TS.
In the event that they are unable/unwilling to act, the president or avice
president of the Royal Institute of chartered Arbitrators shall nominate an Adjudicator.
The syntactical and other infelicities are in the original.
2. – (1) Following the giving of a notice of adjudication and subject to any agreement between the parties to the dispute as to who shall act as adjudicator –
(a) the referring party shall request the person (if any) specified in thecontract
to act as adjudicator, or
(b) if no person is named in thecontract
or the person named has already indicated that he is unwilling or unable to act, and the
contract
provides for a specified nominating body to select a person, the referring party shall request the nominating body named in the
contract
to select a person to act as adjudicator
…..
(2) A person requested to act as adjudicator in accordance with the provisions of paragraph (1) shall indicate whether or not he is willing to act within two days of receiving the request.
…..
3. The request referred to in paragraphs 2, 5 and 6 shall be accompanied by a copy of the notice of adjudication.
…..
6. – (1) Where an adjudicator who is named in thecontract
indicates to the parties that he is unable or unwilling to act, or where he fails to respond in accordance with paragraph 2(2), the referring party may –
…..
(b) request the nominating body (if any) referred to in thecontract
to select a person to act as adjudicator.
Until such time as we receive the details which particulariseIDE
![]()
Contracting's
position on the
contract
between us and your jurisdiction to deal with a purported dispute then you will appreciate that we reserve our position in respect of our participation in this adjudication. For the avoidance of doubt this communication is not to be taken that we accept or concur with your appointment.
By a further letter on 15th October the defendant added the objection that it understood that Mr. Smalley had been employed by a sub-contractor
which had been in dispute with the defendant. On the same day the defendant sent to the adjudicator its response to the claim. In its covering letter, the defendant stated that it reiterated its position regarding Mr. Smalley's jurisdiction in this matter and that the submission was issued expressly subject to that reservation. There was further correspondence on this point, but before me Mr. Dennys disclaimed any suggestion of real or apparent bias on the part of Mr. Smalley.
The conditions require any dispute to be referred to Mr. S. Pratt, we have not received an application to Mr. Pratt nor any confirmation that Mr. Pratt has been contacted and that he was unable/unwilling to act, with this the referring party has not followed the procedures correctly and the adjudicator has not been properly nominated…..we reserve our position on this matter.
After further correspondence, Mr. Smalley wrote to the parties on 22nd October suggesting that the referring party produce evidence that Mr. Pratt had stated that he was unavailable. On the same day Mr. Holland sent an e-mail to Mr. Pratt which included the following:
On or around 26th September 2003 my secretary made contact with you as you are named as adjudicator in the subcontract
between R G
Carter
and my client.
You were informed that we were about to give Notice of Adjudication and therefore needed to apply for the appointment of an Adjudicator.
At that time you declined the appointment as you were involved with (I think) an arbitration in Hong Kong.
I am now being put under extreme pressure by R GCarter
to prove that you declined the appointment.
Could I please ask you to confirm to me, as a matter of urgency, that you were unavailable at that time.
Mr. Holland's secretary was Christine Holland. Mr. Pratt replied the following day by an e-mail which included the following:
I genuinely do not recall your secretary telephoning me on or about 26th September 2003. From my records I was in conferences with counsel …..in London on both Thursday 25th and Friday 26th September 2003 and those meetings lasted all day and extended into each evening.
However, if I had been contacted on or about that date I would have declined. At the end of September 2003 I was already booked on a number of overseas appointments in October 2003. Given those absences from the United Kingdom I could not have properly served the parties in any adjudication.
I am going on a family holiday to California in the morning (which has been booked for some time) and I shall not be back at work until 2nd November 2003.
For your information I would be available to act as adjudicator after 2nd November 2003 and my only subsisting commitment overseas in November 2003 at present is…..for a period of one week at dates that have yet to be fixed.
We have had an opportunity to review the email from Mr. S Pratt presented to us at the end of our meeting on 28 October 2003.
The contents are most disconcerting as Mr. Pratt does not recall being contacted and indeed appears not to have been able to be contacted to advise whether he would be or not be available to act as adjudicator.
The Scheme for ConstructionContracts
Part 1 Adjudication requires the request to the person should be accompanied by a copy of the notice of adjudication, it is evident that in this case this has not been so.
It is also our experience in such matters that the adjudicator would advise/confirm this by way of correspondence and ensure that both parties were informed.
It is also noted that the application to the Chartered Institute of Arbitrators was dated 26 October 2003, the same date as the notice of adjudication, thus there is no intervening time as would be expected where a person is requested and has two days to respond.
We can only conclude that you have not been correctly appointed and you must resign.
The penultimate paragraph of that letter is wrong. The application to the Chartered Institute of Arbitrators was made between 29th September and 3rd October.
Three issues arise under this paragraph. The first is that as matters presently stand, there is no clear evidence that Mr. Pratt was not approached. The second is Mr. Pratt's statement that he would in any event have been unable to accept the appointment. The third is the appropriateness of me resigning at a time when the adjudication is so far advanced. In the context of the latter, I make the point that R GCarter
had it within its gift to have ascertained Mr. Pratt's position when it received the notice of adjudication.
With due consideration to all the circumstances, I am of the opinion that I should continue with the adjudication. The persuasive factors are:
(i) the lack of prejudice to the responding party by any failure to request Mr. Pratt to act (since he was not in any event able to do so); and
(ii) the fact that my resignation would result in disproportionate loss to the referring party.
IDE
did not request the person specified in the
contract
(Mr. Stephen Pratt) to act as adjudicator and can produce no evidence to support their contention that they did. Mr. Pratt is quite clear in his "e" mail to Mr. Holland of 24 October that he had not been requested to act as adjudicator in this matter as on the day
IDE
suggests contact was made he was in conference in London.
The letter concluded:
We therefore do not propose to continue even on a without prejudice basis to our position.
IfIDE
have a dispute under the
contract
that they require to be referred to adjudication then let them do so, as they should have in the first instance, in accordance with the agreement in place. Mr. Pratt is as we all know available from 2 November onwards.
Moving on to Mr. Pratt's comment that he did not recall being contacted, my secretary has confirmed that when she did finally locate Mr. Pratt he said something to the effect of how lucky we were to catch him – he was in London in a series of meetings.
In his written decision of 18th November, Mr. Smalley dealt with the points raised as to his jurisdiction. He dealt with the point that he had not been properly nominated as adjudicator by reference to the points in the first paragraph that I have quoted in paragraph 15 above from his letter of 30th October. He went on to say, in paragraph 26 of his decision:
By letter dated 31st October 2003,IDE
submitted a comprehensive account of the efforts taken to contact Mr. Pratt, and the conversation that took place between Mr. Holland's secretary and Mr. Pratt. I found the account persuasive…